153: FINAL

Question 1

One protected class you can’t have is:

Answer 1

Race

Question 2

Original primary purpose of TITLE 7

Answer 2

To end race discrimination

Question 3

Protected class that gives greatest amount of difficulty is:

Answer 3

Religion because:

protected by first amendment

Question 4

2 protected classes that have the greatest number of requirements for reasonable accommodation are:

Answer 4

Religion and disability

Question 5

Disability was not

Answer 5

one of the original protected classes

Question 6

Disability was amended into

Answer 6

FEHA

both part of FEDERAL (ADA) and STATE statues (FEHA)

Question 7

To reasonably accommodate does not mean you have to (if it can be done) (Disability)

Answer 7

Don’t have to create a job

Do not have to hire someone to a position that does not exist

Maintain someone who can’t perform the vital work duties of the position

Must reasonably accommodate if possible.

Question 8

Must reasonably accommodate religion…does not mean

Answer 8

Does not mean you have to sway away from a seniority system (TWA case-airline-7 day adventist didn’t want to work Saturday-court agreed with TWA and not going to change the way they’ve been doing business/do do business in order to accommodate)

has to fit within both essential job functions and it has to fit within a seniority system or other type of preference given on the job.

Question 9

One of the great areas of litigation in National origin:

Answer 9

English Only

Question 10

Spun State gave us rule that

Answer 10

You can have english only rules especially those who have direct contact with the public

Those people who don’t have contact with the public but are BILINGUAL.

Certain limitations

Question 11

Can’t have english only rules for those

Answer 11

who are not able to speak english because you are depriving them the ability to communicate around the job.

Question 12

EEOC issued guideline that there was a

Answer 12

presumption of national origin discrimination by the existence of the “english only rule”

Court said no. You can have it

The question was if they’re able to communicate or not

Question 13

EEOC issued guideline that there was a

Answer 13

presumption of national origin discrimination by the existence of the “english only rule”

Court said no. You can have it

The question was if they’re able to communicate or not

Question 14

National Labor Relations act

Answer 14

Act that gave tremendous amount of RIGHTS and POWER to union

Gave us unfair labor practices as applied to management

Allowed for strikes, rehire (for those striking so long as it was based on unfair labor practice)

Said there was a duty to negotiate in good faith (don’t have to reach final agreement but have the duty to negotiate in good faith)

Question 15

Taft Hartley Act told us

Answer 15

That Unions can also have unfair labor practices, that Unions could also be in violation of the law.

Did not change right to strike

Question 16

Exception to right to strike:

Answer 16

Wildcat Strike: strike called by a group of workers without anyone’s (union/manager’s) proof. Not protected by NLRA

Not part of formal bargaining process set out by NLRA

Question 17

Under NLRA, bargaining (2):

Answer 17

Permissive and mandatory bargaining matters

Mandatory: everything that has to do with conditions of employment-wages, hours, benefits (HAVE TO TALK ABOUT, don’t have to reach agreement)

Permissive: can negotiate about either topics the union or manager feels strongly about, but you don’t have to (health club memberships, uniform allowances, etc)

Question 18

Workers’ Compensation was no fault system:

Answer 18

Set out so someone is compensated for injury on the job and don’t have to prove employer was negligent

Award, judgement is smaller than it would have been if they had proven negligence. Whole point of Toland and Privette.

Employment bargain. Third party tort fees can be liable for more than employer

Question 19

Two exceptions to the limitations of the capitacians to the no fault nature of workers’ compensation

Answer 19

-Labor code 132A

132A is the section that says you can’t retaliate against someone for bringing a workers’ compensation claim. You will be subject to civil and criminal penalties

-Serious and willful violation: when employer knew or should have known that they were putting the worker into a dangerous position in the work that they were performing without putting in adequate safeguards. (car brakes example)

Question 20

McDonnell Douglas test:

Answer 20

Test that supreme court gave us to show DISPARATE TREATMENT

Question 21

McDonnell Douglast test, court said:

Answer 21

The way that we’re going to prove discrimination is the prima fascia showing:

Membership in a protected class

Qualified to be hired or performing adequately

Adverse job action (fired)

Endice (indication, evidence) of discrimination

Question 22

Once plaintiff has shown prima fascia showing…

Answer 22

the defendant can show that there was a GOOD FAITH reason for their action (layoff, closing office)..

burden then shifts to the plaintiff and the plaintiff has to show PRETEXT (NOT TRUE)

Yeah you closed the office but you just put out a job offering for the job that person had!

Question 23

Age discrimination has its own federal statute:

Answer 23

separate, apart from title 7 but tracks with title 7, (McDonnell Test)

FEDERAL: ADEA: AGE DISCRIMINATION IN EMPLOYMENT ACT

Question 24

Prima fascia showing applies to:

Answer 24

all protected classes including disability discrimation-federal (ADA), state (FEHA)

and also deals with age discrimination

Question 25

ADEA (federal)

Answer 25

Protected class is ANYONE OVER 40.

Question 26

Age discrimination is unique

Answer 26

protects people dependent on their age, even in the protected class

Question 27

Age is...

Answer 27

relative and must be taken into consideration. Someone who is 45 is more like someone who is 39 than someone who is 60

Question 28

Age was amended into

Answer 28

FEHA (state) and part of fair employment and housing act despite it has its separate statute on federal level.

Question 29

Arbitration is ...

Answer 29

cheaper and faster than binding! There is no extent in law than civil litigation Faster because typical arbitration goes to hearing 6 months after, typical trial 18-24 months ...FINAL Can't appeal arbitration unless you can show some kind of fraud

Question 30

Judgement you can always

Answer 30

appeal obligation on district court of appeal to hear your appeal any case you can appeal

Question 31

ERISA (employment retirement income security act)

Answer 31

cast by congress in answer to wrongdoing within pension plans that had been done by both business and labor unions companies. Companies used those pension funds for improper purposes so congress passed ERISA

Question 32

ERISA originally passed to

Answer 32

regulate pension plans

Question 33

ERISA includes all

Answer 33

employee benefit plans (health, dental, disability-all of these health plans under ERISA, not workers' comp)

Question 34

Important things to remember about ERISA:

Answer 34

1) It preempts any state statute (there can't be a state statute that deals with pension funds, healthcare plans, EXCLUSIVE FEDERAL JURISDICTION Because congress said that pension plans being mishandled and misused are NATIONAL PLANS. Don't want separate law in CA than other states. Want one law across country that applies to all pension funds/plans No matter where you are employed, you have that same protection! If you want to sue someone regarding ERISA, you have to go to FEDERAL COURT

Question 35

Fair labor standard act passed to end

Answer 35

child labor but then expanded to include a lot more than child labor (minimum wage) Sets MINIMUM as far as wage an hour law in the country FEDERAL STATUTE Not preemptive. federal minimum wage: $7.25, CA: $10 Allows states and localities to have higher standards

Question 36

Nonexempt employees (wage an hour law)

Answer 36

administrative, supervisorial, professional. not entitled to overtime, lunch and rest breaks. Theory being they run their own schedule due to the position that they old.

Question 37

If nonexempt in California

Answer 37

you're entitled to overtime anything above 8 in a day or 40 in a week.

Question 38

Nonexempt on the federal level

Answer 38

over 40! If you work 3 11 hour days, you get 9 hours of overtime (IN CA) If you work 3 11 hour days and you're nonexempt, you get NONE.

Question 39

Brinker restaurant v. Superior Court

Answer 39

case that told us who could be in a class, define classes for class action lawsuits Said that it's not the employer's responsibilities to MAKE SURE employees take their lunch breaks but to MAKE IT AVAILABLE (30 mins of unpaid leave) of 8 hour shift Employee had a responsibility to keep track if they're not getting their lunch break and that the employee is entitled to compensation if they are working through their lunch break. In CA, if you work your 8 hour shift through lunch, you're entitled to half hour overtime.

Question 40

What is the FMLA

Answer 40

FEDERAL STATUTE Family medical leave act Same as CFRA Provide for 3 months of unpaid medical leave in a 12 month period. If you have a qualifying illness or injury to yourself, your spouse, your children, your parents.

Question 41

What is the CFRA

Answer 41

STATE STATUTE California family rights act Provide same as FMLA Provide for 3 months of unpaid medical leave in a 12 month period. If you have a qualifying illness or injury to yourself, your spouse, your children, your parents.

Question 42

FMLA...

Answer 42

Like Title 7 and FLSA sets MINIMUM (NOT LIKE ERISA)

Question 43

CFRA provides

Answer 43

greater risk for employee. Can be CFRA violation and not FMLA violation when doctor asked employee to disclose illness to employer

Question 44

In Sacramento,

Answer 44

there is a huge danger in employers who think they can grant compensatory time off instead of overtime. Reason companies believe they can do that is because the state does it. State doesn't have to comply with its own labor law! Paid once a month, employees paid 3 times a month?

Question 45

Compensatory time off is not

Answer 45

a takeaway or an obligation to overtime!

Question 46

Independent contractor is REQUIRED

Answer 46

To get WORKERS COMP insurance for employees!

Question 47

Landrum Griffin Act is

Answer 47

Act regarded to labor law! Act that served as protection to union members against the union. Said unions had to disclose how union dues are spent, duty to the membership, that they couldn't use union funds for their own purpose, could not take business position in conflict with union

Question 48

Landrum Griffin defined...

Answer 48

the rights of the union members to have access to full disclosure, appropriate use of funds, proper elections

Question 49

Customer preference is

Answer 49

NOT A BFOQ!!!!!!!!

Question 50

How does Abercrombie and fitch, and Hooters get past customer preference "bfoq"?

Answer 50

Term waitresses as "ENTERTAINERS" not as waitresses Term sales associates as "MODELS" not as sales associates

Question 51

Taft Hartley is and did away with

Answer 51

managements answer to the NLRA closed shop, that you have to be able to be a union member before you're hired allowed for union shop? don't have to be a member before you're hired but within 30-60 days, have to become a member of the union Allowed for agency shops which is where you're not required to join the union.

Question 52

Never have to become a member under agency shop but

Answer 52

have to pay fair share!

Question 53

Right to work states:

Answer 53

22 states that under the Taft hartley right to work that you don't have to join the union or pay the agency fee at all FREE RIDERS, those who derive benefits from unions, negotiations, representations but don't have to pay for any of it. People that belong to the union are required to pick up the FREE RIDERS' share!

Question 54

Right to sue:

Answer 54

Only in those 22 states, primarily REPUBLICAN states!

Question 55

Nurse laguardia was the

Answer 55

first of the labor act and found public policy against the labor injections going on that made strikes illegal and that it endorsed collective bargaining and did away with YELLOW DOG contracts which are

Question 56

Yellow dog contract:

Answer 56

contracts employers require employees to sign at the time they enter employment that they will not strike and if they did go on strike they would be in breach of contract If they violated the induction, they would be in contempt of court

Question 57

Need to give...

Answer 57

21 days notice and 7days to revoke if they're waiving their rights for discrimination Waiving some pension and other benefits?

Question 58

FEHA is the unique statute of limitations in that you have..

Answer 58

have a year to file FEHA complaint from the last day of discrimination, harassment or retaliation and a year after issuance of right to sue Not exactly concurrent, therefore it might be far more than 2 years! DOESN'T MEAN IT'S 2 YEARS!

Question 59

Foley v. Interactive data told us

Answer 59

A) that there is such a thing as implied contract that it is an exception to the "at will" doctrine just like an expressed contract is an exception to the "at will" doctrine. Implied contract is more difficult because we're looking at the Foley factors which include the length of employment, performance on the job, discipline, polices/procedures/practices of employer.

Question 60

Expressed and implied contracts, implied covenant of good faith and fair dealing, public policy are

Answer 60

exceptions to the At Will Doctrine!

Question 61

Expressed contract is

Answer 61

oral or written lays out specifically the terms of agreement

Question 62

Implied contract, you must look at

Answer 62

Foley Factors!!!!!!!!!!!!!! - length of employment - performance on the job - discipline - policies, procedures, practices of employer

Question 63

What are the exceptions to the AT WILL DOCTRINE?

Answer 63

Expressed and implied contracts, implied covenant of good faith and fair dealing, public policy

Question 64

2 sources for Foley

Answer 64

-Contract source (Pew v. Sees candy- said that you could have an implied contract that took you out of at will) - Pew was placed on his own retard? Slain by your own sword - recognized fact that there could be implied contract - set the rules that said you're at will. Peterman v. Teamsters union -Peterman gave us the tort remedies. Early public policy case. Teamsters told peterman to commit perjury, teamsters fired him and peterman sued and said that is breach of public policy. Perjury is a statute

Question 65

Rojo v. Kleiger

Answer 65

Public policy exception in Ca FEHA case She did not file timely, barred from pursuing her claim. Court said NO She's barred from pursuing the statutory claim but she's NOT barred from pursuing the public policy claim because that too is an exception to the at will doctrine and public policy in the state of California includes its statutes of which FEHA is one.

Question 66

Statutory claims gives you certain rights and remedies that public policy claim does not such as

Answer 66

attorney's fees

Question 67

Turner v. Anheuser Bush

Answer 67

Theory on construct discharge

Question 68

Richards v. CH2MHill

Answer 68

Continuing violation doctrine

Question 69

Price Waterhouse v. Hopkins

Answer 69

Sexual discrimination

Question 70

Fischer v. San Pedro Hospital

Answer 70

Defined hostile work environment but it also defined for us the requirement that if you're pursuing an action for hostile work environment that you first file a complaint with the employer so they have enough time to reasonably investigate and take corrective action.

Question 71

If an employer is uninsured...

Answer 71

they are considered liable and negligent

Question 72

2 exceptions to Workers comp coverage

Answer 72

132(a)-claims you can't retaliate against an employee for bringing your claim, or else tort damages and possible criminal liability Serious & Willful- a claim that a known dangerous condition wasn't corrected, so insurance won't pay for this

Question 73

Workers comp is NOT

Answer 73

preempted by ERISA, one of the few employee benefit exceptions

Question 74

Constructive discharge:

Answer 74

occurs when an employee resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is in effect a termination

Question 75

2 Limitations of the duty to mitigate

Answer 75

You are not expected to look outside of your area of profession for work. So if you're lawyer, you don't have to find a job at walmart Reasonable Geographic Area is taken into consideration, because people shouldn't have to relocate for their job

Question 76

ERISA covers 2 types of retirement plans

Answer 76

- Defined Benefit: based on income, age, and years of service. This allows us o know exactly what our retirement income will be. Applies to public and union employees - Defined Contribution: amount of money set aside every year.

Question 77

2 parts of national origin

Answer 77

Country of origin(not where they're from, but country where ancestry is from) Physical, cultural and linguistic characteristics

Question 78

2 exceptions to National origin discrimination

Answer 78

Large, multinational corporations with headquarters OUTSIDE the US can give preferences to citizens of their own country Indian casinos are exempt because they are considered their own separate nation.

Question 79

Garcia v. Spun Steak

Answer 79

Example of the litigation that occurs around "English only" workplace rules, because it is the most common national origin BFOQ

Question 80

OSHA

Answer 80

Not preclusive or preemptive Promotes safe working conditions through: regulations, surprise inspections and enforcement of general duty. Provides statutory remedies for affected employees, employer cannot retaliate Can bring an action and seek fines if appropriate

Question 81

OSHA 2 basic requirements from employers

Answer 81

Compliance requirement: employers must comply with all department of safety health standards General duty clause: the employer is to provide employees with a safe place of employment that is free from recognized hazards that can cause or likely to cause death or serious bodily harm to all employees

Question 82

Wagner Act (NLRA) gives employees (3 rights)

Answer 82

The right to unionize The right to bargain collectively The right to strike (except for people in public health and safety roles, they have binding arbitration instead of striking)

Question 83

Section VII of NLRA:

Answer 83

Protect "Concerted Activity" - Defined as actions taken on behalf of employees through bargaining unit - Ensures mutual aid or protection and Union actions Absolute duty in NLRA for parties to act in good faith and fair bargaining

Question 84

NLRA gave us the NLRB (National Labor Relations Board) NLRB Duties (3) :

Answer 84

Legislative: promulgates regulation Executive- branch appointed by the president and it administers laws Judiciary- disputes for these laws, heard by board

Question 85

Norris LaGuardia Act:

Answer 85

Act based on the premise that a job is more important to the employee that the employer. First venture into protecting the rights of union members

Question 86

Norris LaGuardia Act endorses:

Answer 86

Collective Bargaining which is a representative of the labor meeting with representatives of management to make an agreement. Employer v. Bargaining unit.

Question 87

Bargaining Unit must have a

Answer 87

Community of Interest which means they have common factors for bargaining purposes for the employees (truck drivers have a bargaining unit)

Question 88

When all bargaining pieces come together, it is called...

Answer 88

Collective Bargaining Unit (CBA) or Memorandum of Understanding.

Question 89

2 Kinds of bargaining subjects:

Answer 89

Permissive- subjects in which there is no requirement to bargain over during the collective bargaining process. includes things like health club memberships Mandatory: these subjects are required to be brought up during the collective bargaining process to meet the guidelines of good faith, or else it would be an unfair labor practice (WAGES, BENEFITS)

Question 90

Yellow dog contracts are

Answer 90

ILLEGAL, it is a pre employment contract that employees sign, waiving their rights to strike.